ORIGIN OF 1. ORIGIN OF PARISH CLERKS. Parish clerks were formerly real clerks, of whom every minister had at least one, to assist under him in the celebration of divine offices (1); and for his better maintenance, the profits of the office of aquæbajulus (who was an assistant to the minister in carrying the holy water (2) were annexed to the office of parish clerk (3); so as, in after times, aquæbajulus was only another name for the clerk officiating under the chief minister. APPOINTMENT, TIONS, AND LITIES. Qualification as to age. Canon 91. Canon 91. tion must be if a custom 2. APPOINTMENT, QUALIFICATIONS, AND RESPONSIBILITIES. The 91st canon decreed, that "the clerk shall be of twenty years of age at the least, and known to the parson, vicar, or minister, to be of honest conversation, and sufficient for his reading, writing, and also for his competent skill in singing, if it may be." Where the appointment of the clerk is with the minister, who may be supposed to derive his right from the canon, he would be bound by it, so that he could not appoint a clerk under the age of twenty-one; but where the appointment is with the parishioners, as they exercise the right independently of, or rather in defiance of, the canon, there does not appear to be any thing to prevent them from choosing a clerk under the age of twenty-one. All incumbents once had the right of nomination of the parish clerks, by the common law and custom of the realm. (4) And by a constitution of Archbishop Boniface, "because differences do sometimes arise between rectors and vicars and their parishioners, about the conferring of such offices, we do decree, that the same rectors and vicars, whom it more particularly concerneth to know who are fit for such offices, shall endeavour to place such clerks in the aforesaid offices, who, according to their judg ment, are skilled and able to serve them agreeably in the divine administration, and who will be obedient to their commands." By canon 91. "no parish clerk, upon any vacation, shall be chosen within the city of London or elsewhere within the province of Canterbury, but by the parson or vicar; or where there is no parson or vicar, by the minister of that place for the time being; which choice shall be signified (5) by the said minister, vicar, or parson to the parishioners the next Sunday following, in the time of divine service." (1) Upon this subject the canon law directs:-Ut quisque presbyter qui plebem regit, clericum habeat, qui secum cantet, et epistolam et lectionem legat; et qui possit scholas tenere et admonere suos parochianos, ut filios suos ad fidem discendam mittant ad ecclesiam; quos ipse cum omni castitate erudiat. Extra. 1. 3. t. 1. c. 3. (2) As to carrying the holy water, it is stated in Archbishop Courtney's Register (4 Epp. 194. (a): - Quæ de consuetudine laudabili legitimè præscript' et hactenus pa cificè usitat' quasi ubique per totum regnum Angliæ per clericos aquæbajulos, ex donatione rectorum et vicariorum locorum, paro chianorum sumptibus sustentand' deferri consuevit. (3) Lyndwood, Prov. Const. Ang. 142. (4) Gibson's Codex, 214. (5) It seems to be doubtful whether the canon renders it imperative that the ap pointment of a parish clerk should be sig nified to the parishioners. Campbell v. Maund, 1 N. & P. 558, QUALLIFICA TIONS, AND Since the making of this canon, the right of appointing the parish clerk APPOINTMENT, has often been contested between incumbents and parishioners, and prohibitions prayed, and always obtained, to the spiritual court for maintain- RESPONSIBI ing the authority of the canon in favour of the incumbent against the plea of custom on behalf of the parishioners. (1) In Cundict v. Plomer (2) the parishioners of the parish of St. Alphage, in Canterbury, prescribed to have the election of their parish clerk; but it was contended that, by the canon, the election of the clerk was given to the vicar. It was, however, adjudged, that the prescription should be preferred before the canon, and a prohibition was awarded accordingly. In Jermyn's case (3) it appeared, that the rector of the parish of St. Katherine's in Coleman Street, and Hammond, as clerk there, sued in the Spiritual Court to have his clerk established in his office, as he was placed there by the parson according to the canon, but that the parishioners disturbed him, upon a pretence of a custom for the vestry to elect their clerk. Upon this surmise of a custom, the churchwardens and parishioners prayed a prohibition; and a prohibition was granted, for the Court held, that it was a good custom, and that the canon could not take it away. Before the union of parishes effected by stat. 22 Car. 2. c. 11. there was a custom in the parish of St. Mildred Poultry for the parishioners to join with the rector in the election of a parish clerk. By that act the parish of St. Mary Colechurch was united to that of St. Mildred Poultry, the church of the latter parish remaining. Upon a question respecting the proper party to elect the parish clerk, it was held, that the right of election after the union continued in the inhabitants jointly with the rector, and that an appointment by the rector alone, without the concurrence of the majority of such parishioners, was void; and, consequently, that a person so appointed could not maintain trespass against the churchwardens, &c. for forcibly expelling him from the reading desk of the parish clerk. (4) LITIES. No canon can repeal or alter a custom. The earlier Church Building Acts (stat. 58 Geo. 3. c. 45. and stat. 59 Church BuildGeo. 3. c. 134. enact, that the clerk of every church or chapel built under ing Acts. those acts shall be annually appointed by the minister; but stats. 1 & 2 Gul. 4. c. 38. & 1 & 2 Vict. c. 107. contain no such provision; and as there can be no custom in such churches or chapels, the appointment of the clerk must be in accordance with the canon. In Rex v. Bobbing (Inhabitants of) (5) a pauper was appointed a Appointment parish clerk in the following manner: the rector sent for the pauper of a pauper. on a Sunday, and requested him to perform duty on that day; and on coming out of the desk, the rector said to the pauper, "I appoint you my regular clerk and sexton, and to follow me in funerals and marriages." It was held that this was a proper appointment of the pauper as parish clerk. A right to demand a poll is by law incidental to the election of a parish officer by show of hands. (6) If a parish clerk have been used time out of mind to be chosen by the vestry, and that the archdeacon refuse to swear him in, but admits another Demand of a poll. Archdeacon refusing to swear in. APPOINTMENT, chosen by the parson, a mandamus will be issued commanding him to QUALIFICAadminister the prescribed oaths. (1) TIONS, AND LITIES. Licence from the ordinary. Office of parish clerk conferred a settlement, and gave a right to vote at parliamentary elections. ENACTMENTS OF STAT. 7 & 8 S. 2. Power to appoint persons in holy orders to the office of parish clerk, and who may be required to assist as assist ant curates. And in King v. Henchman (2), official of the Consistory Court of the Bishop of London, a mandamus was granted to admit one Robert Trott to the office of parish clerk of Clerkenwell, being elected by the parish, it being shown that the official had usually admitted to that office. Parish clerks, after having been duly chosen and appointed, were usually licensed by the ordinary ; — this seems to have been unnecessary (3); but when they were licensed, they were sworn to obey the minister. Previously to the enactment of stat. 7 & 8 Vict. c. 59. serving the office of parish clerk for a year gave a settlement, although the clerk was chosen by the parson and not by the parishioners — had no licence from the ordinary — and was a certificate man. (4) And where a clerk held his office for life, or quamdiu se bene gesserit, it conferred the parliamentary elective franchise for the county in which the office was situated, provided the profits arising out of land amounted to 40s. per annum. (5) By stat. 7 & 8 Vict. c. 59. s. 2. (6), when any vacancy occurs in the office of church clerk, chapel clerk, or parish clerk, in any district, parish, or place, the rector or other incumbent, or other the person or persons entitled for the time being, to appoint or elect such church clerk, chapel clerk, or parish clerk, can, if he think fit, appoint or elect a person in the holy orders of deacon or priest of the united Church of England and Ireland to fill such office of church clerk, chapel clerk, or parish clerk; and such person so appointed or elected will, when duly licensed, be entitled to have and receive all the profits and emoluments of and belonging to that office, and also be liable in respect thereof, so long as he holds the same, to perform all such spiritual and ecclesiastical duties within such district, parish, or place, as the rector or other incumbent, with the sanction of the bishop of the diocese, may from time to time require; but such person clerk not to ac- holy orders so appointed or elected is not, by reason of such appointment or election, to have or acquire any freehold or absolute right to or interest in the office of church clerk, chapel clerk, or parish clerk, or to or in any of the profits or emoluments thereof; but he is at all times to be liable to be suspended or removed from his office, in the same manner and by the same authority, and for such or the like causes, as those whereby any stipendiary curate may be lawfully suspended or removed; such suspension or removal nevertheless being subject to the same power of appeal to the archbishop of the province to which any stipendiary curate is or may be entitled. Such parish quire any free hold, or abso- Stat. 7 & 8 Vict. c. 59. s. 3. To be licensed by the bishop, and By stat. 7 & 8 Vict. c. 59. s. 3. every such appointment or election, if made by any other person than the rector or other incumbent of such district, parish, or place, is to be subject to the consent and approval of the rector or other incumbent of such district, parish, or place; and no person (1) 2 Rol. Abr. Prerogative le Roy (L), 234. pl. 5. 15 Vin. Abr. Mandamus (H 3 ), 204. (2) 5 Bac. Abr. Mandamus (C), 263. vide etiam Exp. Cirkett, 3 Dowl. P. C. 327. Rex v. Neale (Clerk), 4 N. & M. 868. Bowles v. Neale (Clerk), 7 C. & P. 262. (5) 1 Stephens on Parliamentary Elections, 512, 513. (6) Stephens' Ecclesiastical Statutes, 2236. in holy orders so appointed or elected is to be competent to perform any of APPOINTMENT, QUALIFICAthe duties of his office, or any other spiritual or ecclesiastical duties within TIONS, AND such district, parish, or place, or to receive or take any of the profits RESPONSIBIor emoluments thereof, unless and until he has duly obtained from the LITIES. bishop of the diocese within which such district, parish, or place is situate, such licence and authority in that behalf as are required and usual in respect of stipendiary curates; but, nevertheless, such licence and authority, when so obtained, will entitle the person so obtaining it to hold the office, and to receive and take the profits and emoluments thereof, until he has resigned the same, or has been suspended or removed, without any annual or other re-appointment or re-election thereto. By stat. 7 & 8 Vict. c.59. s. 4. no rector or other incumbent of any district, parish, or place wherein any such person or persons shall be so employed, or wherein any lecturer or preacher may have been required to undertake and perform other clerical and ministerial duties in the manner thereinbefore provided, or wherein any person in holy orders may have been appointed or elected to fill the office of church clerk, chapel clerk, or parish clerk, is by reason of any such provisions to be exempt from any duty or obligation of employing within the same district, parish, or place, any curate or other assistant to which by any law, statute, canon, or usage he is or may be already liable; but the bishop of the diocese from time to time may require every such rector or other incumbent to provide, or for the bishop to nominate and license, such other curates and assistants to officiate within every such district, parish, or place, in addition, either to the person or persons so intended to be employed, or to such lecturer or preacher, or to such church clerk, chapel clerk, or parish clerk, and to make regulations for the payment of the stipends of such other curates and assistants, as fully and in the same manner, and subject to the same restrictions, as he might have done by law if the act had not been passed. when appointed otherwise than by the bishop, to be subject to the approval of the incumbent. Stat. 7 & 8 Vict. c. 59. s. 4. Appointments of assistant clergy not to exempt incum bents from the duty of providing curates. c. 59. s. 5. Power to sus pend or remove parish clerks not in holy orbe guilty of neglect or mis ders who may behaviour. By stat. 7 & 8 Vict. c. 59. s. 5., if at any time it appear, upon complaint Stat. 7 & 8 Vict. or otherwise, to any archdeacon or other ordinary, that any person not in holy orders, holding or exercising the office of church clerk, chapel clerk, or parish clerk in any district, parish, or place within and subject to his jurisdiction, has been guilty of any wilful neglect of or misbehaviour in his office, or that by reason of any misconduct he is an unfit and improper person to hold or exercise the same, such archdeacon or other ordinary can forthwith summon such church clerk, chapel clerk, or parish clerk to appear before him, and also by writing under his hand, or by such process as is commonly used in any of the courts ecclesiastical for procuring the attendance of witnesses, to call before him all such persons as may be competent to give evidence or information respecting any of the matters imputed to or charged against such church clerk, chapel clerk, or parish clerk; and can, if he see fit, examine upon oath, to be by him administered in that behalf, any of the persons so appearing or attending before him respecting any of such matters, and may thereupon summarily hear and determine the truth of the matters so imputed to or charged against such church clerk, chapel clerk, or parish clerk; and if upon such investigation it appear to his satisfaction that the matters so imputed to or charged against such church clerk, chapel clerk, or parish clerk are APFOINTMENT, TIONS, AND LITIES. False entries respecting marriages. Embezzling the alms from the communicants. Stat. 7 & 8 Vict. c. 59. c. 6. Power to re- true, he can forthwith suspend or remove (1) such church clerk, cla;-1 clerk, or parish clerk from his office, and by certificate under his had and seal, directed to the rector or other officiating minister of the parish, district, or place wherein such church clerk, chapel clerk, or parish clerk held or exercised his office, declare the office vacant, and a copy of such certificate is thereupon, by such rector or other officiating minister, to be affixed to the principal door of the church or chapel in which the church clerk, chapel clerk, or parish clerk usually exercised his office; and the person or persons who upon the vacancy of such office are entitled to elect or appoint a person to fill the same, are forthwith to proceed to elect or appoint some other person to fill the same in the place of the church clerk, chapel clerk, or parish clerk so removed. A parish clerk who deceives the clergyman to make a false entry of the due publication of banns, when none have been published, commits thereby a very serious offence, and may be indicted for the same as a felon; and if found guilty, transported for life. (2) And if he make a false entry himself, he is equally guilty, and liable to the same punishment. The parish clerk is in some places employed, upon the occasion of administering the Lord's Supper, to collect the alms from the communicants; and the purloining or embezzling any portion of the money so received is, doubtless, punishable as a crime; though it seems that he cannot be considered as a servant to, nor the money so taken as the property of, the minister and churchwardens, or either of them. This appears to have been decided in Rex v. Burton (3), where it was held that a clerk could not be considered as servant to the minister or churchwardens, and that an indictment for embezzlement, wherein he was stated so to be, was bad. (4) By stat.7 & 8 Vict. c. 59. s. 6., in case any person, having ceased to be employed in any of the offices or duties of church clerk, chapel clerk. or parish clerk, or having been duly suspended or removed from ary such office or employment, shall at any time refuse or neglect to give up the possession of any house, building, land, or premises, or any part or parcel thereof, by him held or occupied in respect of any such othee or employment, the bishop of the diocese, upon complaint thereof to ha made, can summon such person forthwith personally to appear before him, and to show cause for such refusal or neglect; and upon the failure of tu Barton v. (1) Suspend or remove : — If a parish clerk Walpoole's Free v. Burgoyne, 5 B. & C. 405. Torrent 1. (3) R. & M. 237. (4) Vide stat. 7 & 8 Geo. 4. 34 |